Citation Nr: 0832329
Decision Date: 09/22/08 Archive Date: 09/30/08
DOCKET NO. 06-02 079 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Louis, Missouri
THE ISSUES
1. Entitlement to an evaluation in excess of 10 percent
disabling for hypertension.
2. Entitlement to service connection for bilateral hearing
loss.
3. Entitlement to service connection for tinnitus.
4. Entitlement to service connection for a heart condition,
to include as secondary to service-connected hypertension.
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
L. L. Mollan, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1966 to
November 1968. The veteran also served in the United States
Naval Reserves from October 1965 to November 1966, and from
November 1968 to October 1971.
These matters come before the Board of Veterans' Appeals
(Board) on appeal from an October 2004 RO decision, which
granted the veteran's claim for service connection for high
blood pressure, assigning an evaluation of 0 percent,
effective July 27, 2004, and denied his claims for service
connection for bilateral hearing loss, tinnitus, and a heart
condition, secondary to service-connected high blood
pressure.
The Board notes that, in a February 2006 rating decision, the
RO increased the evaluation of the veteran's service-
connected hypertension from 0 to 10 percent, effective July
27, 2004. Since the RO did not assign the maximum disability
rating possible, the appeal for a higher evaluation remains
before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (where
a claimant has filed a notice of disagreement as to an RO
decision assigning a particular rating, a subsequent RO
decision assigning a higher rating, but less than the maximum
available benefit, does not abrogate the pending appeal).
The issues of entitlement to an evaluation in excess of 10
percent disabling for hypertension and entitlement to service
connection for a heart condition, to include as secondary to
service-connected hypertension are addressed in the REMAND
portion of the decision below and are REMANDED to the RO via
the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. Bilateral hearing loss is first shown by medical evidence
dated several years after the veteran's discharge from
service, and there is no persuasive evidence showing it is
related to a disease, injury or event in service.
2. The most probative evidence shows that the veteran's
current tinnitus disability is not causally related to a
disease, injury or event in service.
CONCLUSIONS OF LAW
1. Bilateral hearing loss was not incurred in or aggravated
by active service, nor may sensorineural hearing loss be
presumed to have been incurred therein. See 38 U.S.C.A. §§
1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp.
2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309,
and 3.385 (2007).
2. Tinnitus was not incurred in or aggravated by active
service. See 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107
(West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303,
3.304, and 4.87 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Veterans Claims Assistance Act of 2000 (VCAA)
With respect to the veteran's claims for service connection
for bilateral hearing loss and tinnitus, VA has met all
statutory and regulatory notice and duty to assist
provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§
3.102, 3.156(a), 3.159, 3.326 (2007).
Under the VCAA, when VA receives a complete or substantially
complete application for benefits, it is required to notify
the claimant and his or her representative, if any, of any
information and medical or lay evidence that is necessary to
substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002);
38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet.
App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112,
120-21 (2004) (Pelegrini II), the United States Court of
Appeals for Veterans Claims (Court) held that VA must inform
the claimant of any information and evidence not of record
(1) that is necessary to substantiate the claim; (2) that VA
will seek to provide; (3) that the claimant is expected to
provide; and (4) request that the claimant provide any
evidence in his or her possession that pertains to the claim.
The Board notes, however, that the requirement of requesting
that the claimant provide any evidence in his possession that
pertains to the claim was rescinded by the Secretary during
the course of this appeal. See 73 Fed. Reg. 23353 (final
rule revising 38 C.F.R. § 3.159(b) to rescind fourth element
notice as required under Pelegrini II, effective May 30,
2008).
A VCAA letter dated in August 2004 fully satisfied the duty
to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 &
Supp. 2006); 38 C.F.R. § 3.159(b)(1) (2007); Quartuccio, at
187. The veteran was aware that it was ultimately his
responsibility to give VA any evidence pertaining to the
claims. This letter informed him that additional information
or evidence was needed to support his claims, and asked him
to send the information or evidence to VA. See Pelegrini II,
at 120-121.
Since the Board has concluded that the preponderance of the
evidence is against the claims for service connection for
bilateral hearing loss and tinnitus, any questions as to the
appropriate disability ratings or effective dates to be
assigned are rendered moot, and no further notice is needed.
See Dingess v. Nicholson, 19 Vet. App. 473 (2006).
The Board further concludes VA's duty to assist has been
satisfied. The veteran's service, private, and VA medical
records relating to his claims of hearing difficulty are in
the file. The Board acknowledges that the veteran indicated
on his January 2006 VA Form 9 Appeal that he has been
receiving private treatment at St. Charles Clinic from 1985
to the present. However, he also specifically stated that
this treatment is related to his high blood pressure and
heart condition. The veteran has at no time referenced
outstanding, available records that he wanted VA to obtain or
that he felt were relevant to his claims of service
connection for bilateral hearing loss and tinnitus.
With regards to claims for service connection, the duty to
assist also includes providing a medical examination or
obtaining a medical opinion when such is necessary to make a
decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2007).
The veteran was provided a VA examination for his hearing
loss and tinnitus in July 2005. The claims folder also
contains an October 2005 addendum to this VA examination.
The Board finds this examination report and opinion to be
thorough and complete. The examiner noted that the claims
file had been reviewed. Therefore, this examination report
and opinion are sufficient upon which to base a decision with
regards to these claims.
As there is no indication that any failure on the part of VA
to provide additional notice or assistance reasonably affects
the outcome of this case, the Board finds that any such
failure is harmless. See Mayfield v. Nicholson, 19 Vet. App.
103 (2005), rev'd on other grounds, Mayfield v. Nicholson,
444 F.3d 1328 (Fed. Cir. 2006).
II. Analysis
The Board must assess the credibility and weight of all
evidence, including the medical evidence, to determine its
probative value, accounting for evidence which it finds to be
persuasive or unpersuasive, and providing reasons for
rejecting any evidence favorable to the claimant. Equal
weight is not accorded to each piece of evidence contained in
the record; every item of evidence does not have the same
probative value. When all the evidence is assembled, VA is
responsible for determining whether the evidence supports the
claims or is in relative equipoise, with the veteran
prevailing in either event, or whether a preponderance of the
evidence is against the claims, in which case, the claims are
denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Service connection may be established for a disability
resulting from personal injury suffered or disease contracted
in line of duty in the active military, naval, or air
service. 38 U.S.C.A. § 1110 (West 2002). That an injury or
disease occurred in service is not enough; there must be
chronic disability resulting from that injury or disease. If
there is no showing of a resulting chronic condition during
service, then a showing of continuity of symptomatology after
service is required to support a finding of chronicity. 38
C.F.R. § 3.303(b) (2007). Service connection may also be
granted for any injury or disease diagnosed after discharge,
when all the evidence, including that pertinent to service,
establishes that the disease or injury was incurred in
service. 38 C.F.R. § 3.303(d) (2007).
In order to establish direct service connection for a
disorder, there must be (1) medical evidence of the current
disability; (2) medical, or in certain circumstances, lay
evidence of the in-service incurrence of a disease or injury;
and (3) medical evidence of a nexus between the claimed in-
service disease or injury and the current disability. See
Gutierrez v. Principi 19 Vet. App. 1, 5 (2004) (citing
Hickson v. West, 12 Vet. App. 247, 253 (1999)).
The term "veteran" is defined, in relevant part, as "a
person who served in the active military, naval, or air
service . . . ." 38 U.S.C.A. § 101(2) (West 2002); see also
38 C.F.R. § 3.1(d) (2007). The term "active military,
naval, or air service" is defined to include active duty,
any period of active duty for training during which the
individual concerned was disabled or died from a disease or
injury incurred or aggravated in line of duty, and any period
of inactive duty for training during which the individual
concerned was disabled or died from an injury incurred or
aggravated in line of duty." 38 U.S.C.A. § 101(24) (West
2002); see also 38 C.F.R. § 3.6(a) (2007). The term "active
duty for training" includes, inter alia, certain full time
duty in the Army National Guard. 38 U.S.C.A. § 101(22) (West
2002); see also 38 C.F.R. § 3.6(c)(3) (2007).
Service connection for organic diseases of the nervous
system, such as hearing loss, may additionally be established
on a presumptive basis by showing that the disease manifested
itself to a degree of 10 percent or more within one year from
the date of separation from service. 38 C.F.R. §§
3.307(a)(3), 3.309(a) (2007).
With respect to hearing loss, VA has specifically defined
what is meant by a "disability" for the purposes of service
connection. See 38 C.F.R. § 3.385 (2007). "[I]mpaired
hearing will be considered to be a disability when the
auditory threshold in any of the frequencies 500, 1000, 2000,
3000, 4000 Hertz is 40 decibels or greater; or when the
auditory thresholds for at least three of the frequencies
500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or
greater; or when speech recognition scores using the Maryland
CNC Test are less than 94 percent."
The veteran alleges that he has bilateral hearing loss and
tinnitus as the result of his active duty service. See
Claim, July 2004. Specifically, he contends that he was
exposed to the loud noises of weapons being fired, without
ear protection, while serving on a ship during active duty.
See notice of disagreement (NOD), November 2004.
As an initial matter, the Board notes that the veteran's
service medical records contain no evidence of complaints,
treatment, or diagnoses of either tinnitus or bilateral
hearing loss. His October 1968 separation examination
revealed that he scored a 15 out of 15 on a whispered voice
test. In addition, there is no indication in the medical
evidence of record that the veteran had bilateral hearing
loss within one year of discharge from service.
A July 2005 VA audiological summary report of examination for
organic hearing loss reflects puretone thresholds as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
10
40
85
100
LEFT
15
10
30
75
85
Speech recognition ability was 88 percent for the right ear
and 76 percent for the left ear. As the auditory threshold
reached a level of 40 decibels or greater for at least 2 of
the frequencies for both ears, the criteria for hearing loss
as described under 38 C.F.R. § 3.385 have been met
bilaterally.
Regulations provide that service connection may be granted
for any disease diagnosed after discharge, when all evidence,
including that pertinent to service, establishes that the
disability was incurred in service. 38 C.F.R. 3.303(d)
(2007).
At the July 2005 VA examination, the veteran reported
difficulty hearing and a constant moderate bilateral cricket-
like sound. He claimed that he first noticed the cricket-
like sounds in his ears a few years after leaving the
military and attributed it to noise exposure in service.
Specifically, he asserted that he was exposed to noise from
guns onboard a ship. The examiner noted that he worked as a
carpenter for 30 years and hunted for the past 40 years. The
veteran denied a family history of hearing loss, use of
ototoxic drugs, ear infections, ear surgery, and dizziness.
In the October 2005 addendum to this examination report, the
claims file was reviewed. The examiner noted that the
veteran's service medical records were negative for any
complaints or treatment for hearing difficulty. She also
noted that the veteran's DD 214 Form was non-specific for any
military specialty that would indicate excessive noise
exposure. She acknowledged the veteran's report of an
extensive occupational and recreational history of noise
exposure and that the onset of his tinnitus symptoms was a
few years after service. In conclusion, the examiner opined
that, due to the fact that there were no complaints of
hearing loss or tinnitus symptoms during service, the
veteran's tinnitus symptoms began a few years after service,
there is no documentation of special training in areas where
military noise exposure would be conceded, and the veteran
reported an extensive amount of civilian occupational and
recreational noise exposure, it is not at least as likely as
not that hearing loss or tinnitus are related to military
service.
The Board notes that the claims folder contains a private
audiogram conducted in May 2004. See Hometown Hearing and
Audiology treatment record, May 2004. This treatment record
reflects that the veteran has long-term noise induced hearing
loss. Id. However, there is no indication in this treatment
record that the veteran's hearing difficulty was incurred in
or aggravated by his active duty service.
Therefore, as the claims folder contains no competent medical
evidence indicating that the veteran experienced significant
noise exposure during service or that he had bilateral
hearing loss within one year of discharge from service, and
the only medical opinion of record regarding etiology
specifically states that it is not at least as likely as not
that the veteran's hearing loss or tinnitus is related to his
active duty, the veteran's claims cannot be granted on either
a presumptive or a direct basis. See Hickson, supra.
The Board acknowledges the contentions of the veteran's
representative that he has experienced ringing in his ears
ever since he was below a 3-inch gun mount when it was being
fired in service. Certainly, the veteran is competent to
report the onset of symptomatology such as ringing in his
ears. However, this report is contradicted by statements
made by the veteran during the course of his audiological
evaluation, wherein he stated that he first noticed tinnitus
a few years after leaving military service. The Board finds
statements offered directly by the veteran during the course
of undergoing evaluation by a health care professional as to
the date of onset of his symptoms to be more credible than
those relayed by his representative in support of his claim.
Consequently, the Board finds that there is no credible
evidence of continuity of symptomatology between the noise
exposure in service and his current tinnitus.
Furthermore, the Board notes that neither the veteran nor his
representative are otherwise shown to be capable of making
medical conclusions, thus, their statements regarding a
relationship between the current disabilities and service are
not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495
(1992).
The Board has also considered the arguments of the veteran's
representative that the whispered voice test conducted at
separation is unreliable and could not accurately assess high
frequency hearing loss. However, even assuming that is the
case, there remains no other competent evidence suggesting
the presence of a hearing loss disability at separation, and
the veteran has not reported the onset of hearing loss
problems in service. Furthermore, as discussed in detail
above, a VA examination was conducted to determine the
etiology of his hearing loss, and the examiner specifically
concluded that the current hearing loss and tinnitus are
unrelated to noise exposure in service. There is no contrary
medical opinion of record.
In summary, for the reasons stated above, the Board finds
that the preponderance of the evidence is against the claims
for service connection for bilateral hearing loss and
tinnitus, and the benefit-of-the-doubt rule is not for
application.
ORDER
Entitlement to service connection for bilateral hearing loss
is denied.
Entitlement to service connection for tinnitus is denied.
REMAND
The veteran alleges that he has a current heart condition as
the result of his service-connected hypertension. See
Informal Hearing Presentation, September 2008. He also
alleges that the severity of his service-connected
hypertension warrants an increased evaluation. Id. After a
thorough review of the veteran's claims folder, the Board has
determined that additional development is necessary prior to
the adjudication of these claims.
As an initial matter, the Board notes that service connection
may be granted for a disability that is proximately due to or
the result of an established service-connected disability.
38 C.F.R. § 3.310 (2007). This includes disability made
chronically worse by service-connected disability. Allen v.
Brown, 7 Vet. App. 439 (1995). The Board notes that there
was a recent amendment to the provisions of 38 C.F.R. §
3.310. See 71 Fed. Reg. 52744- 47 (Sept. 7, 2006). The
amendment sets a standard by which a claim based on
aggravation of a non-service-connected disability by a
service-connected one is judged. Although VA has indicated
that the purpose of the regulation was merely to apply the
ruling of the Court in Allen, it was made clear in the
comments to the regulation that the changes were intended to
place a burden on the claimant to establish a pre-aggravation
baseline level of disability for the non-service-connected
disability before an award of service connection based on
aggravation may be made. This had not been VA's practice,
which suggests the possibility that the recent change amounts
to a substantive change in the regulation. For this reason,
and because the veteran's claim was pending before the
regulatory change was made, the Board will consider the
version of 38 C.F.R. § 3.310 in effect before the change,
which is more favorable to the claimant.
In July 2005, the veteran underwent a VA examination, at
which he was diagnosed with coronary artery disease. Upon
review of the claims folder and examination of the veteran,
the examiner determined that the veteran's coronary artery
disease is more likely than not secondary to his diabetes, as
diabetes is more of a risk factor for heart disease than
hypertension.
While the examiner specifically stated that the veteran's
heart disease was secondary to his diabetes, he did not offer
any opinion regarding the possibility that the veteran's
coronary artery disease could have been aggravated by his
hypertension. In this case, the veteran's representative has
specifically argued such a relationship. Thus, the Board
finds that the medical evidence of record is inadequate for
the purpose of adjudicating the veteran's claim for service
connection for a heart condition, to include coronary artery
disease, and that a new VA examination must be conducted,
specifically addressing the issue of aggravation. Colvin v.
Derwinski, 1 Vet. App. 171, 175 (1991) (if the medical
evidence of record is insufficient, the Board is free to
supplement the record by seeking an advisory opinion or
ordering a medical examination).
In addition, the Board notes that the veteran indicated on
his July 2004 Claim and his January 2006 VA Form 9 Appeal
that he is currently receiving treatment for his heart
condition and his hypertension from a Dr. M.W. at St. Charles
Clinic in St. Charles, Missouri. The veteran alleges that he
has been receiving treatment for these conditions from this
same physician since 1985, to include a July 2003 heart
surgery. Currently, the record contains a statement from Dr.
M.W., dated January 2006, indicating that the veteran has
been under his care since 1985, along with limited treatment
records from 1985. The claims folder, however, does not
contain any of the veteran's current records of treatment by
this physician. VA has an obligation under the VCAA to
assist claimants in obtaining evidence, to include relevant
records from private medical care providers. 38 C.F.R. §
3.159 (2007). As the physician's January 2006 statement
indicates the possibility that there are recent treatment
records regarding the veteran's high blood pressure and heart
condition that have not yet been associated with the claims
folder, an attempt should be made to locate any possible
outstanding private treatment records prior to the above-
requested VA examination.
Accordingly, the case is REMANDED for the following action:
1. Send to the veteran a letter requesting
that he provide sufficient information,
and if necessary, authorization to
enable the RO to obtain any additional
pertinent evidence not currently of
record, to specifically include any
possible treatment records relating to
his heart condition, to include
coronary artery disease, and his
hypertension from Dr. M.W. at the St.
Charles Clinic in St. Charles,
Missouri, referred to in his January
2006 VA Form 9 Appeal. The RO should
also invite the veteran to submit any
pertinent evidence in his possession,
and explain the type of evidence that
is his ultimate responsibility to
submit. Associate any records received,
including negative responses, with the
claims file.
2. After the aforementioned records have
been obtained, schedule the veteran for
an appropriate VA examination. The
claims file should be provided to the
examiner for review, and the examiner
should note that it has been reviewed.
After reviewing the file, the physician
should render an opinion as to whether
it is at least as likely as not that
the veteran has a heart condition, to
specifically include coronary artery
disease, that has been aggravated by a
service-connected disability,
particularly the veteran's service-
connected hypertension.
It would be helpful if the examiner would
use the following language, as may be
appropriate: "more likely than not"
(meaning likelihood greater than 50%),
"at least as likely as not" (meaning
likelihood of at least 50%), or "less
likely than not" or "unlikely"
(meaning that there is a less than 50%
likelihood).
The term "at least as likely as not"
does not mean "within the realm of
medical possibility." Rather, it means
that the weight of medical evidence
both for and against a conclusion is so
evenly divided that it is as medically
sound to find in favor of that
conclusion as it is to find against it.
The examiner should provide a complete
rationale for any opinion provided.
3. Then, readjudicate the claims. In
particular, review all the evidence that
was submitted since the February 2006
supplemental statement of the case
(SSOC). If the benefits sought on appeal
remain denied, he should be provided a
SSOC, which includes a summary of
additional evidence submitted, any
additional applicable laws and
regulations, and the reasons for the
decision. After the veteran has been
given the applicable time to submit
additional argument, the claims should be
returned to the Board for further review.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
No further action is required of the veteran until further
notice. However, the Board takes this opportunity to advise
the veteran that the conduct of the efforts as directed in
this remand, as well as any other development deemed
necessary, is needed for a comprehensive and correct
adjudication of his claims. His cooperation in VA's efforts
to develop his claims, including reporting for any scheduled
VA examination, is both critical and appreciated. The
veteran is also advised that failure to report for any
scheduled examination may result in the denial of a claim.
See 38 C.F.R. § 3.655 (2007).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the Court for additional development or other appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs